Full Text:Volume 1B

Refusal to Give Sample

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The offence under 254(5) states:

254
[omitted (1), (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6) and (4)]

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
[omitted (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

This is a single offence that can be committed in several different ways.

258
[omitted (1)]

Evidence of failure to give sample

(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) [roadside screening test] or subsection 254(3) [taking samples of breath or blood within 3 hrs], (3.3) [demand breath sample outside 3 hours] or (3.4) [demand urine or blood sample], evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) [impaired operation] or in any proceedings under subsection 255(2) [impaired driving causing bodily harm] or (3) [impaired driving causing death], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 [taking samples of breath/blood] is admissible and the court may draw an inference adverse to the accused from that evidence.
[omitted (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The offence can be committed in two ways, either by refusing or failing to comply with the demand.

There remains conflicting case law on whether the offence is a specific or general intent offence.However, the more recent case law has largely fallen on the side of refusal being a general intent offence and so requires no more than a recklessness or knowledge of the mens rea.

Valid Demand to Comply

See also Breath Sample Demand.

There is no requirement to have evidence as to the extent of chances available to a person who changes their mind. Moreover, where the refusal is unequivocal there is no obligation for a "last chance" warning.

There is no requirement that the police officer explain all the consequences of non-compliance to a valid demand.

It is unclear whether the authority to make a demand under s. 254(3) includes the authority to have the accused taken to the location of the device or whether the accused must choose to accompany them. However, a failure or refusal to accompany the officer to the device may not amount to a full refusal.

Refusal to Comply

The refusal to comply with the demand for a breath sample must be unequivocal.

In a refusal case (as opposed to a "failing" case), it is irrelevant whether or not the breathalyzer was functioning properly. However, in a fail case, it may be a valid defence to show that the device or instrument was not properly functioning.

It is possible to refuse by body language such as turning away and closing eyes. Or refuse by silence.

Evidence should show that the device was working properly. This should include evidence that the device had been previously tested including the mouthpiece for obstructions.

A refusal which is equivocal and closely followed by an offer, then the offence is not made out.

It has been found that a reasonable excuse is not made out on the basis of officially induced error from an accused accepting the bad advice from duty counsel to refuse the breathalyser.

In assessing the totality of the circumstances, the judge may consider the evidence of the accused's silence in response to a lawful demand.

An unlawful refusal of the screening device will still amount to an offence even if the device is not at the scene.

Failure to Comply

A failure to comply with the demand arises where a suspect makes either genuine or faked attempts at providing a sample.

Feigning or Faking Attempts

When an accused may be feigning his attempts to provide a sample, the "totality of the circumstances including any explanation advanced at the time of the attempt or in court must be considered."

An intention to fake a sample must be proven by the Crown beyond a reasonable doubt.

Change of Mind

A refusal almost immediately followed by a change of heart may not amount to a full refusal.

A shorter turn around time of 5 minutes can be seen as equivocal.

Where there is a full refusal and after 15 minutes an offer to take the test, then the offence is made out. The two events are entirely separate.

Where there is an unequivocal refusal, there is no requirement on the officer to offer a second chance at giving the ASD test.

Reasonable Excuse

Once the crown proves the essential elements beyond a reasonable doubt, the burden shifts to the accused to establish on a balance of probabilities that there is a reasonable excuse for failing to provide a breath sample.

It is of some debate whether an explanation for not providing a sample is a reasonable excuse or a failure to prove the mens rea.

The burden of proving there was no reasonable excuse is simply on raising a doubt.

For a reasonable excuse to exist there must be something in the circumstances that renders "compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made".

An offer to provide a sample through other means such as a blood sample is not sufficient to be a “reasonable excuse”.

A person who refuses the breathalyser on the basis of advice from the duty counsel phone call cannot amount to a reasonable excuse.

An accused may be permitted to refuse to provide a sample where the officer has shown some "malice to the person whose breath was to be tested or if he had threatened some unfairness or illegality." The basis of the belief of the threat must be reasonable.

Reasonable excuses have been found when:

• The technician had dirty hands and refused to clean them prior to administering the test.
• the accused had been previously assaulted by police and was reasonably fearful of further violence
• rough handling by police
• reasonable fear that an unsatisfactory result would incur violence by police

Reasonable doubt about intention to refuse to provide a sample for the screening device has been found on the basis of the accused nervousness and anxiety.

An honestly held religious belief cannot be used as a reasonable excuse.

Reliance on poor legal advice is generally not a defence of officially induced error.

Other Issues

Where the suspect offers to give a blood sample instead of giving a breath sample in the ASD or breathalyser, the officer is at liberty to seek a voluntary blood sample. The officer may only demand a blood sample in place of a breathalyser sample if the officer believes that the "suspect is incapable of providing breath samples".

The officer may also demand that that the suspect perform a physical coordination test in place of a roadside demand (s. 254(2)(a)).

Breath Sample Demand

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

Introduction

As part of the offence of "Over 80" under s. 253(1)(b), the crown must prove the accused's Blood Alcohol Content (BAC) is over 0.08 per millilitres.

Under s. 254(3), a sample of breath, urine or blood can be taken for measurement. The sample can be analysed and a blood alcohol level can be measured. This measurement can be used to infer the BAC level at the time that the accused was operating a motor vehicle.

The procedure required for a proper demand under s. 254(3) must be followed. The taking of a sample counts as a search and if the procedure is not followed then it will amount to a search not authorized by law, and therefore violate s. 8 of the Charter. Section 254(3) sets the constitutional minimum requirement for a search.

The timing of the sample is of great importance. The timing must be in relation to the time in which the accused was in care and control of the vehicle and in relation to the time where the officer initially forms grounds of suspicion and belief.

Most details of the demand, such as who asked for the demand or where it was made, are not essential to prove. There only needs to be evidence that the demand was made with sufficient grounds as soon as practicable.

Breath Sample

Under s. 254(3), a peace officer may demand an Intoxilyzer breath sample where the officer has “reasonable and probable grounds” to believe that the person is committing, or has committed in the last three hours, an impaired driving offence.

s.254
...

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [operation while impaired] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

(ii) ...; and

(b) if necessary, to accompany the peace officer for that purpose.

...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Outside 3 Hours Window

Where the officer has not made a demand for a screening sample under s. 254(2)(b) or a demand for a breath sample in an approved device under s. 254(3), the officer may still make a demand under s. 254(3.3):

254 (1)
...

Testing for presence of alcohol

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.
...

– CCC (CanLII), (DOJ)

"Reasonable grounds to believe"

• See Reasonable Grounds Under Section 254(3)

Blood or Breath Sample Demand

The demand informs the accused of the intention to take a sample of blood or breath. A typical sample demand under s. 254(3) will go as follows:

Breathalyzer Demand

"I demand you to accompany me to <location of breathalyser > and to provide samples of your breath, suitable to enable an analysis to be made in order to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.

Do you understand?"

–

Blood Sample Demand

"I demand you to accompany me to <location> and to provide such samples of your blood, as in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.

Blood samples will only be taken by or under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health.

Do you understand?"

–

The demand must be in plain language, sufficient for the accused understand what is required of them. There is no fixed formula or magic wording, rather sufficiency can be inferred on the surrounding circumstances of the demand.

A variety of variations on demand are available.

The key requirement is that the demand not is an invitation or request. It must be unequivocal.

There is no requirement that the word "forthwith" be used, but the meaning must be conveyed by word or conduct.

It is not more restrictive or meaningful to say "sample" instead of "samples."

Whether the demand was unequivocal is a question of fact.

The demand should always involve an advisement that the sample will be taken by a qualified practitioner. However, it is not necessary to inform the accused of all requirements regarding qualified medical practitioners.

A Breathalyzer demand can be made at any location and need not be at the location of the approved machine.

The officer should take steps to ensure that the accused understands the questions of the demand and is able to respond in a meaningful way.

The validity or invalidity of a second demand made by the Qualified Technician does not affect the validity or invalidity of the initial demand of the investigating officer and vice versa.

It is generally sufficient evidence for the officer to give testimony that a "breath demand" was made without giving a full verbatim reading of what was said.

Timing of demand ("as soon as practicable")

A breath demand amounts to a warrantless search and so is prima facie unreasonable, thus the burden is on the Crown to establish the validity.

Under s. 254(3), "as soon as practicable" means "within a reasonably prompt time" given the circumstances.

The inquiry is upon "whether the police acted reasonably." There is no need for the police to explain every minute that that the accused is in custody. Instead, the judge should use common sense and experience for determining practicality.

When delays exist due to the offs are performing other duties, the question for the judge is not simply weather there exists "some explanation" but rather weather "the steps taken by the office or in performing general duties before the demand was made were necessary and reasonable in the circumstances."

Where the investigating officer failed to make a valid demand, the qualified technician can still make a valid breath demand. The qualified technician must have the same requisite grounds and must make the demand "as soon as practicable" upon getting the grounds.

Waiting for a tow truck may result in too much delay. It is incumbent upon the officer to keep up to date on the availability of a tow truck and consider options such as calling for assistance in the case of a delay in its arrival.

Right to Counsel

It is necessary that before the demand is made that the accused is given the right to counsel. This is particularly necessary where a refusal of the demand would be an incriminating statement.

See Also

• Refusal

Reasonable Grounds Under Section 254(3)

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

254
[omitted (1), (2) and (2.1)]

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person [to give a sample of breath]...

[omitted (a) and (b)]

[omitted (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Under s. 254(3), a officer may demand that an accused give a sample of his breath where he had reasonable and probable grounds to believe that he has committed an offender under s. 253(1)(a) or 253(1)(b) within the proceeding 3 hours.

The three hour limit has nothing to do with the two hour limit required for the application of s. 258(1)(c), the presumption of identity.   It is irrelevant whether the offence did in fact occur within the past three hours, it only matters whether he subjectively believed it and was reasonable in the belief.

When Grounds Must be Proven

The Crown does not need to prove reasonable and probable grounds where no Charter challenge has been made. In other words, a challenge to the reasonable grounds must come by way of a Charter application. Without such an application, the judge cannot take into account whether or not there were grounds to make the demand. The lack of reasonable and probable grounds does not invalidate or render inadmissible the certificate of analysis.

Burden

The burden is upon the Crown to prove the existence of reasonable grounds to make the demand under s. 254(3) since the knowledge of the grounds is in the "peculiar knowledge" of the Crown.

Standard of Proof

Where the accused challenges the sufficiency of the grounds supporting a breath demand, the issue for the judge is "whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired".

In the context of a breath demand, the standard of reasonable grounds is not considered "onerous".

“Reasonable and probable grounds” lays below proof beyond reasonable doubt and a prima facie case. It is a standard that is a "reasonably-based probability". It should be at the level of trial evidence. However, it should not be so low that it "threatens individual freedoms".

The grounds must be established objectively and subjectively. The subjective component requires the officer to have an honest belief of the commission of the offence (that the accused’s ability to operate a motor vehicle was impaired to any amount by a drug or alcohol. The objective component requires that the belief be supported by objective evidence.

The question is never whether the officer could have investigated further, only whether there were sufficient grounds.

"Totality of the Evidence"

Each indicia may in isolation have other reasonable inferences to be drawn, the question to be asked is whether on the "totality of the evidence" the officer was reasonable to draw the inference required under s. 254(3). It is an error of law to consider each indicia independently of the other.

There is no fixed formula or list of indicia that must be applied mathematically. The factors however should not be treated as a "mathematical formula" or a "scorecard" to make a conclusion of reasonable grounds.

There is no obligation that the accused must be "in a state of extreme intoxication" before the officer can have grounds.

Subjective Considerations

In determining reasonable and probable grounds to make the demand the officer must consider everything that he had seen or knew at the time the demand was made. This obviously excludes from consideration information that may not have been known at the time as it cannot be analysis from hindsight.

The officer should take into account all that is available to him and is entitled to disregard information that he has reason to believe is unreliable.

The officer need not dispel reasonable alternative inferences from the evidence.

Duration of Investigation

There is nothing "surprising or unusual" about an officer being able to form a belief in less than a minute of observations.

Valid Indicia of Impairment

The Court may consider factors including:

1. Poor Driving (including collision with curb, driving outside lines)
2. Failure to Stop Immediately for Police
3. Odor of Alcohol in Vehicle
4. Unsteadiness on Feet
5. Fumbling or Dropped Driver’s Licence
6. Odor of Alcohol on Breath
7. Admitted Consumption of Alcohol
8. Geographical Confusion
9. Slowed or Slurred Speech
10. Experienced Opinion of Officer

Evidence of eyes and speech may be problematic where the officer has no prior contact with the accused.

Absence of Indicia

The absence of typical indicia will not necessarily undermine the reasonableness of the grounds based on observations.

Irrelevant Factors

It is not relevant whether the officer chose not to conduct a roadside screening into whether the grounds existed. There is no obligation for the officer to take a roadside sample.

It is not necessary for the officer to make full inquiry into the accused's version of events to form reasonable and probable grounds.

Timing

Only the facts known or available to the peace officer at the time he formed his reasonable belief that the accused was impaired is applicable.

There is no requirement that the Crown show that the officer continued to observe signs of impairment after the grounds have been formed and the demand has been made. Failure to present evidence of impairment after forming grounds does not undermine the reliability of the officer's grounds. However, evidence of the presence or absence impairment can go to the reliability of the grounds. Gunn, supra </ref>

Evidence Considered

The officer can form grounds based on hearsay evidence.

Limitations on Orbanski Evidence

The officer may question the suspect about alcohol consumption without giving them a right to counsel. However, the response about alcohol consumption may only be used for the purpose of establishing grounds for demand and not for the purpose of establishing impairment. There does not appear to be any limitation on utterances not specifically about alcohol consumption.

The Orbanski limitation only applies to evidence that was "obtained from compelled direct participation by the motorist in the roadside test" authorized by provincial legislation. It does not include incidental observations made by the officer in "while carrying out other authorized duties".

The distinction between compelled participation evidence and incidental observations, depends on an analysis to "identify the purpose for the officer's directions to the motorist after the roadside stop".

Despite the suspension of 10(b) rights, there is still the obligation to inform the suspect of the reason for detaining them.

Orbanski limitations do not apply to those incidental observations arising from compelled utterances required under the provincial legislation, such as the detainee "having difficulty spelling her name, or that she spoke rapidly".

See Also

• Right to Counsel

Presumption of Identity Under Section 258

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Impaired Driving, Over 80 and Refusal
• < Proof of Blood Alcohol Levels

General Principles

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the "accused’s blood alcohol level at the time of the offence was the same as at the time of testing." However, if the presumption is not available, the crown must prove the accused's blood alcohol level at the time of the offence. This usually requires expert testimony of a toxicologist.

A crown is always permitted to rely both on the presumption and also call evidence of the technician in the same trial.

Section 258(1)(c) states:

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a) and (b)]

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) [taking samples of breath or blood within 3 hrs], if

(i) [Not in force]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things —* that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed*; [emphasis added]

[omitted (d), (d.01), (d.1), (e), (f), (f.1), (g), (h), (i)]

[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a) and (b), (c), (d), (d.01)]

(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and

(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

[omitted (e), (f), (f.1), (g), (h), (i)]

[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

– CCC (CanLII), (DOJ)

---

Requirements

The requirements under s. 258(1)(c) are summarized as:

1. a demand was made under s. 254(3)
2. each sample was made as soon as practicable after the time of the offence
3. the first sample was "no later than two hours after [the time of the offence]"
4. each sample is taken no less than 15 minutes apart
5. each sample was received directly into an approved container or approved instrument
6. the container or instrument was operated by a qualified technician.
7. analysis of each sample was made by means of the approved machine operated by a qualified technician.

Where the requirements are satisfied, then the BAC level is made out. Much of the case law revolves around whether these elements are made out. If they are deficient in any way, then the presumption cannot be relied upon and it would be necessary for the Crown to present expert evidence on the disbursement of alcohol in the blood system over time to make the inference that the alcohol level was over 80 at the time of the offence.

Rebutting the Presumption

The presumption of identity can be rebutted by defence by establishing that:

1. the BAC was consistent with a level below the legal BAC limit and
2. consumption is consistent with the results.

Effect of Charter Violations on the Presumption

Even where it is found that there was no reasonable and probable grounds to believe the suspects ability to drive was impaired, the presumption of identity still applies and a conviction will result so long as the certificate is not excluded under s. 24(2) of the Charter.

(*) Constitutionality of s. 258

Section 258(1)(c)(d.01) and (d.1) of the Code are all constitutional. They violate s. 11(d) of the Charter but are justified under s. 1 of the Charter so long as the following phrases are struck:

• "all of the following three things -" (258(1)(c))
• "that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed" (258(1)(c))

Sample Taken As Soon as Practicable

Under s. 258(1)(c)(ii), proceedings in respect of an offence under s. 253, 254(5), 255(2) to (3.2) in which samples of breath are taken pursuant to a 254(3) demand each sample must be "taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time".

This creates a right to be subject to the demand within a time limit or else the accused rights will be violated.

A test done "as soon as practicable" requires that the test be made “within a reasonably prompt time under the circumstances”. This comes down to whether the police acted reasonably.

It does not mean that the test must be taken at the very earliest moment.

Where a delay is prima facie unreasonable the crown must prove beyond a reasonable doubt that the delay does not violate s. 258(1)(c)(iii) in order to rely on the presumption of identity.

If the delay is explained satisfactorily, the presumption of identity can still be relied upon.

Essentially, the court asks whether the police have taken the sample reasonably promptly? This standard does not mean “as soon as possible”.

It also does not require the Crown to explain every detail or every minute of delay. However, there should be an obligation "to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time" This is necessary to afford meaningful appellate review of the Trial Judge’s decision.

The delay should be in “as limited time as is reasonably possible” which can be a very flexible range of time.

Under s. 258(1)(c)(ii), the Crown must be prepared to demonstrate that in the circumstances were taken in a reasonable time, including by showing the way the police are organized and why the samples were prompt.

Where the peace officer reasonably believes that there is a risk to the security of the vehicle or its contents, a delay due to efforts to secure the vehicle will be a justifiable delay.

Delay due to the officer's regular duties, such as making notes, searching car, basic questioning, and adjusting handcuffs, is generally considered reasonable.

Delay due to controlling a difficult accused can be acceptable.

Waiting for a tow truck will not necessarily violate the practicable requirement.

Whether samples were taken "as soon as practicable" is a question of fact.

Sample within Two Hours

Where the sample was taken outside of the two hour limit, the Crown can only prove the BAC levels by making an inference from the measured BAC level. This requires a qualified expert on the absorption, distribution and elimination of ethanol alcohol by the human body.

The opinion sought by the crown would be the BAC level while driving in light of :

• the accused gender, age, height and weight
• the time of driving
• the time and readings of tests
• whether any alcohol was consumed between driving and the tests, and what effect it would have on the readings
• any evidence on the accused's drinking around the time of the incident
• the timing of and amount of drinking needed to produce the readings without having BAC over 0.8 while driving

It is expected that an expert testifying will be relying on a number of assumptions, such as:

1. A rate of elimination of between X and Y milligrams of alcohol in one hundred millilitres of blood per hour (varying depending on the age, gender, height and weight of the individual)
2. A two hour plateau;
3. No consumption of alcohol between the time of driving until after the last test; and
4. No significant consumption of alcohol just prior to, or an instant before the moment the accused was established as in care and control.

The expert should be able to testify to the number of “standard drinks” needed to be consumed at specific times prior to operating the vehicle for the readings to be generated. However, it may not be necessary to prove the actual case.

Where such expert evidence is needed to establish BAC at the time of driving, the evidence may include the possibility of the BAC being either just below or just above 0.8. This is known as straddle evidence.

This evidence is considered admissible and may still be sufficient to support a conviction. The courts may consider the evidence, along with other factors relating to impairment, to determine whether this evidence raises a reasonable doubt rebutting the presumption in s. 258(1)(d.1).

It is generally understood that the elimination rates is 20 mg of alcohol in 100 ml of blood per hour.

Interval Between Samples

The test involves the taking of three breath samples of no less than 15 minutes apart.

Where the gap between samples is greater than 20 minutes some explanation is required or else it may be not as soon as practicable in compliance with the requirements of s. 258(1)(c)(ii).

The police are required to monitor the accused for the 15 minutes leading up to the breath test in order to ensure that there is no burping, vomiting, or belching that would give artificially high readings.

A failure to wait 17 minutes after an "invalid sample" can invalidate the presumption.

A delay in excess of 15 minutes is "prima facie unreasonable" and requires an explanation.

Samples Directly into Instrument

Under s.258(1)(c)(iii), the Crown must prove beyond a reasonable doubt that sample was provided "directly into an approved instrument". This can be proven by inference as a matter of logic and common sense based on surrounding evidence.

Taken by Qualified Technician

Section 254(3)(1)(a) requires that the "qualified technician" have an opinion that the samples properly administered and were sufficient for "a proper analysis" of the alcohol concentration.

Failure to operate the machine in compliance with the manual may raise doubt as to the reasonable belief that the machine results are accurate. However, it is not necessary that the operator strictly follow the operating manual where the officer's training experience and belief go beyond what is in the manual.

Proof of "qualified technician" for purposes under s. 258(1)(c) can be done in one of four ways:

1. by relying on the special rule of evidence prescribed in the equivalent of s. 258(1)(g);
2. by calling the Attorney General or his deputy, which, of course, is not practicable;
3. by relying on s. 22(1) of the Canada Evidence Act, RSC 1985, c C-5, and filing a copy of the official Gazette or a copy of the appointment or certified copy of the appointment; or
4. by relying on certain presumptions of law and rules of evidence developed by the common law including the maxim omnia praesumuntur rite esse acta.

"qualified technician"

Definition

254 (1) In this section and sections 254.1 to 258.1,
...
"qualified technician" means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258. (technicien qualifié)

[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]

– CCC (CanLII), (DOJ)

"presumptions of law"

It is available to prove the person was a qualified technician by showing "that the man in question had acted in the requisite capacity".

Analysis by Approved Instrument

Under s. 258 (1)(c)(iv), “an analysis of [a] sample was made by means of an approved instrument operated by a qualified technician” is a necessary element to establish “conclusive proof” of the BAC level at the time of operation.

The test has both a subjective and an objective component. The officer must have an honest belief which is demonstrated and the belief must be objectively reasonable.

Factors that go to whether the officer knew that the test was reliable include the familiarity of the effect and measure of the temperature at the time the test was taken.

The procedure for approving a device is set by the Attorney General of Canada. The Canadian Society of Forensic Sciences' Alcohol Test Committee vets the device for approval. The standards of the committee are published in the Recommended Standards and Procedures of the Canadian Society of Forensic Alcohol Test Committee, Can. Soc. Forensic Sci. J. Vol 46. No 1 (2013) pp. 1-3

For details on the test procedure see: R v Moriaux, 2012 MBPC 20 (CanLII), 278 Man R (2d) 43, per Harapiak J, at paras 19 to 39

Approved Breath Analysis Instruments

The list of approved devices are found in SI/85-201 Approved Breath Analysis Instruments Order:

Approved Instruments

2 The following instruments, each being an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person, are hereby approved as suitable for the purposes of section 258 of the Criminal Code:

(a) to (c) [Repealed, SOR/2012-237, s. 1]

(d) to (g) [Repealed, SOR/2013-107, s. 1]

(h) Intoxilyzer ® 5000 C;

(i) [Repealed, SOR/2012-237, s. 1]

(j) [Repealed, SOR/2013-107, s. 1]

(k) BAC Datamaster C;

(l) Alco-Sensor IV-RBT IV;

(m) [Repealed, SOR/2013-107, s. 1]

(n) Alco-Sensor IV/RBT IV-K;

(o) Alcotest 7110 MKIII Dual C;

(p) Intoxilyzer® 8000 C;

(q) DataMaster DMT-C; and

(r) Intox EC/IR II.

SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1; SOR/2007-197, s. 1; SOR/2008-106, s. 1; SOR/2009-205, s. 1; SOR/2012-237, s. 1; SOR/2013-107, s. 1.

– ABAIO

Functioning Device

It is not necessary to prove beyond a reasonable doubt that the device is working properly.

Description of the Device

The officer is not required to testify to the exact model of the device. And failure to do so does not undermine the testimony. The important part is that they believe the device was an "approved" one.

A described device or instrument is not fatal so long as it is believed by the officer that it is an approved screening device.

Inconsistencies in the evidence of naming the device a "Intoxilizer 8000C" and "Intoxilizer 8000", of which only one of them is approved, may have the effect of raising doubt on the element.

Where Presumption Does Not Apply

Where the presumption under s. 258(1)(c) does not apply, the crown needs to prove the BAC at the time of the offence by inference. This generally requires the calling of an expert witness who can testify as to the BAC level at the time of the offence given the reading and the timing of the reading of the breath sample.

A toxicologist report will commonly rely upon the four assumptions

1. no "bolus drinking" (rapid drinking of large amount of alcohol shortly before incident);
2. no consumption of alcohol between the incident and the breath test;
3. an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour; and
4. a 2 hour "plateau" after drinking where the rate of elimination does not change.

Assumption of the elimination rate and plateau do not need case specific evidence to rely upon. This can be taken as judicial notice. However, the assumption against bolus drinking and post-incident drinking require evidence.

Forthwith Under Section 254

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

Section 254(2) requires that once the officer has reasonable suspicion he must seek to have the suspect "provide forthwith" a sample of breath or a physical coordination test. It states:

254
...

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[annotation(s) added]

– CCC (old)

The assumption is that the demand was made at the first possible opportunity after the formation of suspicion. The "clock begins to run" from this point onward.

If the officer is not in a position to require a breath sample "before any realistic opportunity to consult counesl, then the officer's demand is not a demand made under s. 254(2).."

"Forthwith" means "immediately or "without delay". It connotes a prompt demand and an immediate response.

"Forthwith" should be "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. The term has the same meaning as "without delay" as worded in s. 10(b) Charter (right to counsel).

A demand that is not "forthwith" is not authorized by s. 254(2), is not a lawful demand and is not in compliance with s. 8 of the Charter.

Where the "forthwith" requirement is complied with, the period of time from the demand to the test is a justifiable infringement of the section 10(b) Charter rights.

Constitutionality

The obligation on the detainee to comply with a breath test or physical coordination forthwith without first having a right to counsel violates s. 10(b) of the Charter of Rights and Freedoms, but is upheld as a justifiable limitation under s. 1.

Where any element of s. 254(2) have not been met, the detainee has a right to counsel prior to complying with the demand.

Reasonable Delays

A delay in the "forthwith" requirement is permitted where "proper analysis" may not be immediately possible, such as where the sample might be contaminated by cigarette smoke or recent consumption of alcohol. In such cases, a short delay is permitted so that an accurate test can be taken.

A wait of 5 minutes between a demand for a ASD and the arrival of the ASD on the scene can be forthwith.

The consideration of “forthwith” requirement under s. 254(2), requires that:

1. There is a contextual analysis, keeping in mind the legislation’s balance between the interest to eradicate drunk driving and the protection of Charter rights.
2. the demand must be made promptly once the officer has reasonable suspicion there is alcohol in the driver’s body;
3. the “forthwith” requires a prompt demand and an immediate response from the driver. However, the circumstances may dictate the need for greater flexibility. In such case the time must be no more “than is reasonably necessary to enable the officer to discharge” his duty.
4. the immediacy requirement must take all circumstances into account. For example, short delay in administering the ASD due to a need for accurate results or articulable and legitimate safety concerns is permissible. The delay must be “no more than is reasonably necessary to enable to officer to discharge his...duty”.
5. the circumstances must not allow for the police to realistically have implemented the accused’s 10(b) rights.

Further principles were summarized in R v Mastromartino, 2004 CanLII 28770 (ONSC), OR (3d) 540, per Durno J, at para 23</ref>:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

In most cases a delay becomes unreasonable when in excess of 10 minutes.

Delay Due to Unavailability of ASD

The ASD device does not need to be on scene at the time of forming the grounds. However, where the officer is performing a roadside check did not keep an ASD at the scene out of convenience resulted in a violation of the "forthwith" requirement.

Where the ASD is not readily on hand, the delay waiting for the device may result in invalidating the demand. The question is whether the delay afforded the time to have a "realistic opportunity to consult counsel."

Delays in the range of 15 minutes between the demand and the test is reasonable for dealing with the "exigencies of the use of the equipment."

Delay Between Forming Suspicion and the Screening Demand

A "flexible approach" requires that the screening demand should be made "promptly" upon forming the requisite grounds. There is no need that the demand be "immediate."

A reasonable delay between reasonable suspicion and demand can be for purpose of learning more about the amount of alcohol consumed, and potentially letting the person on his way. Also, where there is a legitimate public safety issue or related problems that justify a brief delay.

However, an unexplained delay for as little as 9 minutes can be found to be an unreasonable delay.

Access to cell phones

The availability of a cell phone or nearby landline is not relevant where the officer is able to administer the test forthwith. However, delays in administration will make the availability of a phone relevant.

An officer may permit a detainee to contact counsel if they possess a cell phone.

As compared with "As Soon As Practicable"

There is generally no difference between the word "forthwith" and "as soon as practicable."

A delay of 11 minutes to clear the driver's lungs after recently smoking is reasonable.

Standard of Review

The question of whether the ASD was administered forthwith is a question of fact and warrants deference to the trial judge on a standard of "palpable and overriding error."

Screening for Drugs or Alcohol

This page was last substantively updated or reviewed January 2021. (Rev. # 79421)

• < Criminal Law/Sentencing
• < Offences
• < Conveyances

General Principles

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

[omitted (2)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

No Obligation

Screening tools are optional to the officer based on the circumstances of the observations. Where the officer is sufficiently satisfied there are grounds without use of screening devices, they do not need to use them.

Mandatory Alcohol Screening

320.27 (1)
[omitted (1)]

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

The officer may make an MAS demand where:

1. they are in "possession of an approved screening device"
2. they are "in the course of the lawful exercise of [police] powers", whether federal, provincial or common law;
3. the suspect "is operating a motor vehicle"

The satisfaction of these requirements means that they must "accompany the peace officer" for the purpose of "immediately provid[ing] the samples of breath" that are "necessary to enable a proper analysis"

Constitutionality

The authorization for detention is arbitrary under s. 9 of the Charter of Rights and Freedoms but saved under s. 1 and so is constitutional.

The mandatory screening under s. 320.27(2) breaches s. 8 of the Charter as it allows for search without reasonable suspicion. It is saved under s. 1 as so is upheld.

Screening Device

This page was last substantively updated or reviewed January 2021. (Rev. # 79421)

• < Criminal Law/Sentencing
• < Offences
• < Conveyances

General Principles

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

[omitted (2)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

No Obligation

Screening tools are optional to the officer based on the circumstances of the observations. Where the officer is sufficiently satisfied there are grounds without use of screening devices, they do not need to use them.

Mandatory Alcohol Screening

320.27 (1)
[omitted (1)]

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

The officer may make an MAS demand where:

1. they are in "possession of an approved screening device"
2. they are "in the course of the lawful exercise of [police] powers", whether federal, provincial or common law;
3. the suspect "is operating a motor vehicle"

The satisfaction of these requirements means that they must "accompany the peace officer" for the purpose of "immediately provid[ing] the samples of breath" that are "necessary to enable a proper analysis"

Constitutionality

The authorization for detention is arbitrary under s. 9 of the Charter of Rights and Freedoms but saved under s. 1 and so is constitutional.

The mandatory screening under s. 320.27(2) breaches s. 8 of the Charter as it allows for search without reasonable suspicion. It is saved under s. 1 as so is upheld.

Screening Device (Until December 13, 2018)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

Introduction

The grounds for arrest on offences under either s. 253(1)(a) or (b), requires that the officer have reasonable and probable grounds that:

1. the offender was in care and control of a motor vehicle while his ability to operate the motor vehicle was impaired (s.253(1)(a)), or
2. the offender was in care and control of a motor vehicle while his blood alcohol concentration was over 0.80.

Signs of intoxication do provide some reasonable grounds to suspect impairment, but given that impairment does not imply a BAC over 80 and the strength of odour tells the observer nothing of the concentration in the body, a screening device will provide further information.

There is no right to counsel on a roadside screening demand.

Approved Screening Device

Definitions

254 (1) In this section and sections 254.1 to 258.1,
...
"approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada; (appareil de détection approuvé)
...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Roadside Screening

A police officer may employ a road-side screening test on a suspect under s. 254(2):

254
[omitted (1)]

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

[omitted (a)]

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[omitted (c)]

[omitted (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Effective roadside screening is a necessary tool for dealing with impairding driving.

For there to be a valid screening device demand under s.254(2) the demand must be:

1. must be made by a peace officer;
2. with reasonable grounds to suspect
   1. that a person has alcohol or a drug in their body; and
   2. that person has within the preceding three hours operated or had care and control of a motor vehicle.

This second requirement was brought in with the July 2, 2008 amendments. Prior to the amendments it was necessary that the officer find the accused in the state of operation or care and control. This amendment is not retrospective as it provides the police with a new power.

There is no requirement that the officer have reasonable belief that the accused committed any crime.

Observational evidence

Compelled Admissions

A person compelled by statute to make admissions with respect to the operation of a motor vehicle cannot be used as grounds to administer a roadside test, or arrest.

An investigator who is investigating an accident and possible criminal offence at the same time must "delineate clearly" the end point of the accident investigation in order to negate the belief that a statement must be given.

A statement compelled by statute must be proven on a balance of probabilities that:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a “report” within the meaning of the compelling statute.
3. That he gave his report with the honest and reasonable belief he was compelled by the statute to do so.

Short and straightforward questions by the police about alcohol consumption for the purpose of screening without giving access to a lawyer is a reasonable limitation to a persons s. 10(b) Charter right.

If a police officer arrests a suspect for impaired driving he no longer has any authority to make a screening demand under s. 254(2) for a breath sample.

Also, if the officer has formed reasonable and probable grounds to believe that an offence has occurred under s. 253, he has no authority to make a demand under s. 254(2) for a roadside screening breath sample.

Physical Signs of Impairment

It is not usually sufficient to observe signs of alcohol consumption. However, cases have that the smell of alcohol on a person’s breath alone is enough to create a reasonable suspicion.

The smell of alcohol on a driver's breath alone can be sufficient to create a reasonable suspicion.

Where an officer states there is a sign of slurred speech but fails to provide details on what words were slurred, this can be used against the reliability of the evidence.

Determination of impairment is on an objective standard of “an ordinary citizen” or a “reasonable person”. Observations to consider include:

1. evidence of improper or abnormal driving by the accused;
2. presence of bloodshot or watery eyes;
3. presence of a flushed face;
4. odour of an alcohol beverage;
5. slurred speech;
6. lack of coordination and inability to perform physical tests;
7. lack of comprehension; and
8. inappropriate behaviour.

The odour of alcohol originates from the non-alcoholic content of the drink. There is no relationship between the amount of alcohol consumed and the odour. A stronger odour tends to show more recent consumption.

Limitation on evidence collected during roadside test

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand. The trade-off of this is that the test results can only be used to provide grounds of arrest and demand under s.254(3). Alternatively, where the tests and statements constitute the actus reus of the offence. Otherwise, the evidence is inadmissible. This includes for the use of credibility.

Screening Demand

A typical screening request will go as follows:

Approved screening Device Demand

"I demand that you forthwith provide me with a sample of your breath, suitable for analysis by an approved screening device, and to accompany me to <location of ASD> for the purpose of obtaining a sample of your breath. Should you refuse this demand, you will be charged with the offence of refusal.

Do you understand?"

– {{{2}}}

A proper screening demand engages "an immediate response by the person to whom that demand is addressed".

The demand does not have to be given by the officer first on scene. It can be an officer who arrives later on and is informed of the investigation.

The person who makes the demand must be the person who forms the reasonable suspicion.

For discussion on the requirements of a valid demand, see: Breath Sample Demand

Timing of Screening Sample ("forthwith")

• Forthwith Under Section 254

Access to Counsel

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.Consequently, the is no right to counsel before or during the administration of the screening device so long as it is being properly administered.

However, if any of the requirements for a valid screening demand are not met, such as a failure to use the screening device "forthwith", will render the demand invalid and so will revoke the s. 10(b) rights suspension and consequently result in a breach of 10(b).

Depending on the jurisdiction, a person cannot be required to do a "field sobriety test" without first being informed of the right to counsel.

See Right to Counsel

Approved Screening Device

The key requirement is that the officer had a subjective belief that the device was an approved screening device. A description of the device as listed in the Code will usually suffice and a statement of belief.

The reasonableness in the officer's belief of the character of the device must be proven beyond a reasonable doubt.

The crown must present at least some evidence establishing that the device used was an "approved screening device". It cannot simply be assumed. Nevertheless, assertion by the officer can be sufficient. It will often be conclusive where the issue is not challenged on cross-examination or evidence to the contrary. Details about the make, model and similar do not need to be completely accurate for the judge to accept the evidence. It is only necessary that the officer reasonably believed it was an approved device.

If there is some evidence establishing that the device is an approved screening device, it is for the defence to prove on a balance of probabilities that the device was not reliable.

Factors relating to the functioning of the machine:

• whether the device booted up normally
• whether machine appeared to be working (the machine would likely signal if it wasn't working)
• the expiry date of the machine (i.e. when it was due for re-calibration)
• if past expiry, the number of days past expiry
• if past expiry, whether there was access to another machine readily

Calibration

Calibration of an ASD is done by applying a solution with a known alcohol concentration level to the ASD. The calibration is adjusted until the readings are correctly measured two times in a row.

The frequency of calibration of the machine varies on police policies. A typical frequency is 14 days.

The list of Approved Screening Devices can be found in the Approved Screening Devices Order, Regulation SI/85-200.

Listed Approved Screening Devices

The list of approved screening devices is found in the Approved Screening Devices Order, SI/85-200:

Approved Screening Devices

2 The following devices, each being a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person, are hereby approved for the purposes of section 254 of the Criminal Code:

(a) Alcolmeter S-L2;

(b) Alco-Sûr;

(c) Alcotest® 7410 PA3;

(d) Alcotest® 7410 GLC;

(e) Alco-Sensor IV DWF;

(f) Alco-Sensor IV PWF;

(g) Intoxilyzer 400D;

(h) Alco-Sensor FST; and

(i) Dräger Alcotest 6810.

SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1; SOR/2009-239, s. 1; SOR/2011-313, s. 1; SOR/2012-61, s. 1.

– ASDO

Administering the ASD Test

The officer should be able to give evidence describing how he operated the device, how the test was administered, and whether the device appeared to operate properly.

The person administering the test does not need to be a qualified technician, s. 254(2) only requires that he be a peace officer.

An officer may only give an opinion on the proper functioning of the device where they have had training in that regard.

Adequacy of the Sample

The officer giving the demand must be the same officer to formulate the opinion of the adequacy of the samples provided. However, the person forming the opinion does not need to be the person administering the test itself.

Factors Affecting Reliability

Mouth Alcohol

A failure to consider evidence of mouth alcohol may undermine the reasonableness of reliance on the ASD readings. Officer should have waited.

Results

An ASD will show a result of "pass", "warning" or "fail". The results will assist the officer to determine if further investigation, including further testing, is required. A “failed” test of an Approved Screening Device will be considered along with other indicia of impairment as forming reasonable grounds to demand a breath sample. Normally, a “fail” alone is sufficient to form the grounds for the demand.

The crown should prove a part of its case that a failed ASD test was accurately recorded. To prove this the officer must have had an honest basis to believe that the machine was accurate and the belief was reasonable. There is no burden, however, to prove that the machine was in fact measuring accurately.

See Also

• Reasonable and Probable Grounds

Operation, Care or Control of a Vehicle

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The offence of having care or control of a vehicle under s. 253(1) is considered a separate offence from the offence of driving while impaired under the same section.

Operation

Section 214 definition of "operate" was repealed by 2018, c. 21, s. 13. It previously read:

Definitions

214 In this Part,
...
"operate"

(a) means, in respect of a motor vehicle, to drive the vehicle,

(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether

(i) as a member of the crew of the equipment,

(ii) as a person who, by remote control, acts in lieu of such crew, or

(iii) as other than a member or person described in subparagraphs (i) and (ii), and

(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;

...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.

– CCC (CanLII), (DOJ)

---

The definition only applies to Part VIII of the Code, which includes offences that relate to motor vehicles.

A vehicle which is completely unable to be moved in any direction cannot be operated within the meaning of s. 214. However, a vehicle that is stuck and can only move a matter of 1 or 2 feet is still in operation.

A passenger who grabs the steering wheel and controls the direction of the vehicle operates it.

The use of the steering wheel of a vehicle that is being towed constitutes operation.

Care and Control

An essential element to proving an offence under s. 253 or 254, the Crown must prove that the accused was in "care and control" of the motor vehicle at the relevant time.

Care and control of a vehicle is criminalized on the basis that an impaired person has a recognized diminished capacity to make safe decisions and may attempt to drive, putting others at risk.

Care and control can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.

"Care or control" under s. 253(1) generally requires:

1. an intentional course of conduct associated with a motor vehicle;
2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and,
3. in circumstances that create a realistic risk of danger to persons or property.

Section 258(1)(a) creates a presumption of care and control where the accused is found in the driver's seat.

Proof of care and control absent the presumption under s. 258(1)(a) requires:

1. an act involving the use of the motor vehicle, its fittings or equipment, or a course of conduct associated with the vehicle
2. an element of risk of setting the vehicle in motion, either intentionally or unintentionally; and,
3. element of dangerousness arising from the risk of setting the vehicle in motion

Dangers include the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive.Where an accused was found in a stationary vehicle, it is not necessary for the Crown to prove that the accused intended to set the vehicle in motion.

The Crown, however, must establish that the accused performed "some act or series of acts involving the use of the car, its fittings or equipment...whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.” The key to the determination is the risk of setting the vehicle in motion and become dangerous.

Where it is less than actual driving, to establish "care and control" it must be determined whether, as part of the actus reus, the accused's use of a motor vehicle or its "fittings and equipment" or the accused's conduct would involve the risk of putting the vehicle into motion and become dangerous.

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."

Risk of Danger

Danger is an essential part of care and control. Even where the accused did not specifically intend to put the vehicle in motion, where some operation of the vehicle creates the risk that the vehicle will be set in motion, even if by accident, will satisfy the requirements of care and control.

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible".

Operations of Fittings and Equipment

Many acts that are less than driving can constitute care and control.

Not all operation of the "fittings and equipment" will result in care and control. However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.

Presumption in Driver's Seat

Care and control can be proven through the presumption created by establishing that a person was in the driver's seat under s. 258(1)(a).

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

– CCC (CanLII), (DOJ)

---

The presumption is engaged at the time the driver's seat was first occupied, not simply when the accused was observed by police. This presumption can be rebutted by calling evidence that the driver's seat was not occupied for the purpose of operating the vehicle on the balance of probabilities.

The purpose of the presumption is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion" while still excluding those who enter a car for reasons other than to set the car in motion.

The presumption will be in effect even where the driver's seat has been fully reclined.

The presumption will not be available where the accused is sleeping across the front seats.

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren. It is not relevant whether the vehicle is immobile.

Rebutting Presumption

Rebutting the presumption requires the accused to establish under s. 258(1)(a) "that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be". This requires evidence negating the mens rea of the offence.

Rebuttal of the presumption is on the balance of probabilities.

There is a division in the case law on the time at which the mens rea is established.

Some say that the initial intention upon the entry into the vehicle establishes the mens rea. A change of intention does not rebut the presumption.

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.

If the presumption has been rebutted, the accused may still be convicted where there was a danger that the accused could have put the vehicle in motion.  

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion. The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.

Indecision of the accused does not rebut the presumption.

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.

The driver who says "I'll only drive when I am sober" will not rebut the presumption.

Factors of Risk

The risk of danger of a change of mind has been described as a "real risk", a "realistic risk" and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.

The risk does not need to be immediate.

A risk of a change of mind must be established by the crown. There must be a "real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion."

Where the accused is not in actual operation of the vehicle, the court must consider the risk of danger that the accused poses. The risk of danger that an intoxicated person poses has been broken down into three categories:

1. The risk that the vehicle will unintentionally be set in motion
2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others
3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:

1. The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
2. Whether the keys were in the ignition or readily available to be placed in the ignition;
3. Whether the vehicle was running;
4. The location of the vehicle;
5. Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
6. The accused’s disposition and attitude;
7. Whether the accused drove the vehicle to the location where it was found;
8. Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
9. Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
10. Whether the accused had a stated intention to resume driving;
11. Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
12. Whether the accused was wearing his or her seatbelt;
13. Whether the accused failed to take advantage of alternate means of leaving the scene;
14. Whether the accused had a cell phone with which to make other arrangements and failed to do so.

Sleeping in Vehicle

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences. However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed. So for example, a person who sits in the driver's seat of a vehicle to sleep off the effects of alcohol will be in care and control.

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodian of the vehicle and there is no risk of the car being set in motion.

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

• accused had not place to stay and so slept in vehicle; vehicle was off
• the vehicle was turned on to keep accused warm
• car off and keys in ignition

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

• sleeping in front seat with vehicle off; keys were accessible
• car running but intended to turn it off/no intention to drive

Car Disabled

Where a vehicle is immobilized due to a flat tire, the driver has often been found not to be in care and control. Similarly, where a car is found in mobilized in a ditch there is no "risk of danger" that would result in the accused being in care and control.

Outside Vehicle

In certain circumstances, a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient. Where the accused is directing tow truck, it may be care and control.

Case Digests

• See Impaired_Driving_and_Over_80_(Offence_Cases)

Proof of Blood Alcohol Levels

• < Criminal Law
• < Offences
• < Impaired Driving, Over 80 and Refusal
• < Proof of Blood Alcohol Levels

General Principles

As part of proving the offence of "Over 80" under s. 253(1)(b), the Crown must prove the accused's Blood Alcohol Content (BAC) at the time was over 0.08 milligrams of alcohol per millilitre of blood. This must have occurred while operating or in care and control of a motor vehicle.

Traditionally, proving the blood alcohol level required expert evidence from the breath technician who took the sample. Section 258(1)(g) was added to remove the need for a breath technician to testify. Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c), 258(1)(d.1), and 258(7), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle removing the need for a breath technician to testify.

It is also necessary that the sample be taken pursuant to a breath demand under s. 254(3).

The provisions admitting the certificate without the breath technician must be interpreted strictly as it removes the right to cross-examine and put the burden upon the accused to prove the inaccuracy of the analysis. However, the judge should still be "pragmatic" when it comes to omissions and typographical errors. Errors that do not prejudice the accused, having regard to the circumstances, are not necessarily sufficient.

A breath technician is not permitted to compel a suspect to stand on the scale to disclose their weight for the purposes of calculating blood alcohol level.

Presumption of Identity s. 258(1)(c)

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the accused’s blood alcohol level at the time of the offence was the same as at the time of testing.

Admission of Breath Test Results

The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).

The crown is permitted to rely the results proven both ways.

Section 258(1)(g) states that:

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b), (c), (d), (d.01), (d.1), (e), (f) and (f.1)]

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Repealed before coming into force, 2008, c. 20, s. 3]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

[omitted (h) and (i)]

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24; 2018, c. 21, s. 7.

– CCC (CanLII), (DOJ)

---

To rely upon s. 258(1)(g) requires:

1. the analysis of each samples has been made by means of an approved instrument
2. the instrument was operated by the technician
3. the technician ascertained it to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument
4. the results of the analyses are made out
5. the time and place of each sample was made out
6. each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician

Approved Container

Definitions

254 (1) In this section and sections 254.1 to 258.1,
...
"approved container" means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and

(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (contenant approuvé)

...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

The Order Approving Blood Sample Containers, SOR/2005-37 was enacted under the definition of "approved containers" found in s. 254(1), states:

Approved Containers

1 The following containers, being containers of a kind that is designed to receive a sample of blood of a person for analysis, are hereby approved as suitable, in respect of blood samples, for the purposes of section 258 of the Criminal Code:

(a) Vacutainer® XF947;

(b) BD Vacutainer™ 367001;

(c) Vacutainer® 367001;

(d) Tri-Tech Inc TUG10;

(e) BD Vacutainer® REF 367001; and

(f) TRITECHFORENSICS TUG10.

SOR/2010-64, s. 1; SOR/2012-60, s. 1.

– OABSC

Presumption of Accuracy

The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25(1) of the Interpretation Act to s. 258(1)(g). Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate. The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."

Admission of a certificate under s. 258(1)(g) "is evidence of [the technician's] status as a qualified technician".

"Approved Instrument"

The term "approved instrument" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

"Qualified Technician"

The term "qualified technician" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
"qualified technician" means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Rebuttal of Presumption

To rebut the presumption of accuracy the defence must raise a reasonable doubt that:

1. the approved instrument was functioning properly and operated properly;
2. the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and
3. the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".

Oral Evidence of the Breath Technician

The officer cannot simply give evidence stating that the readings were in "milligrams percent" without specifying what substances are being measured.

Certificate of Analysis

The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:

1. the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)
2. notice of intention to produce the Certificate of Analysis

In determining the admissibility of the certificate, the court may consider the contents of the certificate.

In agreeing to admit the toxicologist report does not amount to a concession of the essential elements or facts against them.

"analyst"
Section 254 defines "analyst", used in s. 258(d), (e), (f), and (i), as:

Definitions

254 (1) In this section and sections 254.1 to 258.1,
analyst means a person designated by the Attorney General as an analyst for the purposes of section 258; (analyste)
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Notice

Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.

The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.

s. 258
[omitted (1), (2), (3), (4), (5) and (6)]

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

– CCC (CanLII), (DOJ)

---

It is mostly accepted that the certificate must be proven on a balance of probabilities.

The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."

The term "copy" must mean "true copy" as an untrue copy would not even be a copy.

The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible. Merely glancing at the documents is not enough to ensure it was an exact reproduction. However, word for word comparison is not necessary either. There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review. Photocopies are generally sufficient. However, they must be legible to be valid.

When serving notice is it necessary that the officer is satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.

Receipt of Notice

Service of a notice under s. 258(7) does not require the accused to have continued control in possession of the certificate after receiving notice. However, a separate line of cases suggests that the accused must have personal possession for a sufficient period of time.

Valid Certificate

A valid certificate should state the following on its face:

• the time each sample was taken
• the place each sample was taken
• the results of the analysis of each sample
• that each sample was taken from the accused
• that each sample directly into the instrument
• that each sample was taken by an approved instrument
• the instrument was operated by a qualified technician
• the instrument was calibrated using a suitable alcohol standard
• the type of alcohol standard used

Errors in Certificate

Errors in the certificate are not necessarily fatal.

It is understood that the code provision are to be interpreted strictly, The absence of prejudice may not warrant invalidating the certificate.

Typographical errors in the certificate can be corrected in certain cases. Where the certificate otherwise complies with s. 258(1)(g), then it is admissible and can be corrected by viva voce evidence.

They can be corrected by presenting extrinsic credible evidence which provides a basis to establish that there was an error and what the correction would be. This will normally be through viva voce evidence. It should not be done merely by inference. The evidence can come from someone other than the technician.

The scratching out of a number and insertion of a number is an error that needs to be clarified by viva voce evidence.

An error in citing the Criminal Code provision regarding the designation of the certificate does not invalidate the certificate.

An error in checking off the right box identifying the qualification of the technician can be fatal without some additional evidence on their qualification somewhere on the certificate.

A failure to sign the certificate may render it inadmissible. There suggestion that a printed name will suffice but a typed name will not.

"Evidence to the Contrary" (Pre-2008 Amendments to s. 258)

Evidence to the contrary is evidence that "tends to show" that the accused's blood alcohol level at the time of driving was below the legal limit of 80 milligrams percent.

This type of evidence traditionally came in the following forms:

• evidence relating to the manner in which the machine was operated;
• evidence the accused consumed alcohol after the offence and before the readings were obtained;
• evidence of the time the last drink was consumed coupled with expert evidence that the last drink would not have been in the blood at the time of the driving (the "last drink defence");
• evidence of the amount consumed, when it was consumed and a toxicologist who can determine the blood-alcohol level while driving;
• use the same evidence regarding consumption to establish the machine as inaccurate.

Evidence of the accused's build and physical characteristics along with expert evidence of that person's rate of elimination on a date other than the offence date which shows a BAC level below 80 may be ETTC.

It is improper to reject ETTC simply by comparing it to the certificate readings. There must be a consideration of the credibility of the ETTC to reject it.

The defence does not have to lead evidence to establish ETTC. It can be inferred from all the evidence.

Carter Evidence

"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.

The presumption can be rebutted by proof that the approved instrument analyzing the driver’s breath was malfunctioning or was operated improperly.

It is not necessary for the accused to prove:

1. that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood; or
2. that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.

Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level. Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.

Instead, the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.

Bolus Drinking

Bolus drinking is the consumption of a significant amount of alcohol just prior driving. It is considered a relatively rare occurrence. The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences. Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle.

This in effect places a "practical evidentiary burden" on the accused, but does not place an onus or persuasive burden on the accused to prove that there was bolus drinking.

See R v Calabretta, 2008 ONCJ 27 (CanLII), 65 MVR (5th) 128, per Wake J for a detailed consideration on Bolus drinking

"Evidence Tending to Show" Malfunction or Improper Use of Instrument

The "evidence tending to show" the malfunctioning or improper use of the device does not need to come from an expert.

It is only necessary that the defence "adduce evidence to raise a reasonable doubt as to the proper operation of the instrument". This does not require that the defence "show the improper operation 'resulted in'... the reported concentration" of blood alcohol.

Acid Reflux

Evidence of Gastroesophogal reflux disease (GERD) can has been found to constitute evidence to the contrary or otherwise raising a doubt as to the breathalyzer readings. To be considered the accused must present evidence that there was alcohol in the accused stomach and that acid reflux resulted in some of the alcohol being brought into his mouth.

Blood / Urine tests

A blood sample can be obtained by a) a demand under s. 254(3)(a)(ii), b) by consent, or c) by a blood sample warrant under s. 256.

The blood sample test results can be proven by oral evidence through the normal rules of evidence or by documentary evidence of a certificate of a qualified medical practitioner or qualified technician. The certificate must comply with s. 258(1)(h).

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b) and (c)]

(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

(v) an analysis was made by an analyst of at least one of the samples,

evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

[omitted (d.1), (e), (f), (f.1), (g), (h) and (i)]

[omitted (2), (3), (4), (5), (6) and (7)]

– CCC (CanLII), (DOJ)

---

For more details, see Seizure of Bodily Samples and Consent Search.

Procedure

The defence must raise an issue with the admissibility of the analysis results during trial for it to be rendered inadmissible. The issue should be raised no later than the point in Crown's case where the certificate is introduced or the oral evidence of the results are presented. If the defence fails to challenge the admissibility of the analysis results, the Crown does not need to prove the officer's grounds to make the 254(3) demand.

A challenge to the analysis results by way of a Charter challenge under s. 8 places the burden on the Crown to prove the grounds to make the 254(3) demand on a balance of probabilities.

Admission of Certificates

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b), (c), (d), (d.01) and (d.1)]

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

[omitted (g), (h) and (i)]

– CCC (CanLII), (DOJ)

---

See Also

• Breath Sample Demand

External Link

• BAC DataMaster Basic Operator Guide

Proof of Blood Alcohol Levels

• < Criminal Law
• < Offences
• < Impaired Driving, Over 80 and Refusal
• < Proof of Blood Alcohol Levels

General Principles

As part of proving the offence of "Over 80" under s. 253(1)(b), the Crown must prove the accused's Blood Alcohol Content (BAC) at the time was over 0.08 milligrams of alcohol per millilitre of blood. This must have occurred while operating or in care and control of a motor vehicle.

Traditionally, proving the blood alcohol level required expert evidence from the breath technician who took the sample. Section 258(1)(g) was added to remove the need for a breath technician to testify. Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c), 258(1)(d.1), and 258(7), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle removing the need for a breath technician to testify.

It is also necessary that the sample be taken pursuant to a breath demand under s. 254(3).

The provisions admitting the certificate without the breath technician must be interpreted strictly as it removes the right to cross-examine and put the burden upon the accused to prove the inaccuracy of the analysis. However, the judge should still be "pragmatic" when it comes to omissions and typographical errors. Errors that do not prejudice the accused, having regard to the circumstances, are not necessarily sufficient.

A breath technician is not permitted to compel a suspect to stand on the scale to disclose their weight for the purposes of calculating blood alcohol level.

Presumption of Identity s. 258(1)(c)

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the accused’s blood alcohol level at the time of the offence was the same as at the time of testing.

Admission of Breath Test Results

The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).

The crown is permitted to rely the results proven both ways.

Section 258(1)(g) states that:

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b), (c), (d), (d.01), (d.1), (e), (f) and (f.1)]

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Repealed before coming into force, 2008, c. 20, s. 3]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

[omitted (h) and (i)]

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24; 2018, c. 21, s. 7.

– CCC (CanLII), (DOJ)

---

To rely upon s. 258(1)(g) requires:

1. the analysis of each samples has been made by means of an approved instrument
2. the instrument was operated by the technician
3. the technician ascertained it to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument
4. the results of the analyses are made out
5. the time and place of each sample was made out
6. each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician

Approved Container

Definitions

254 (1) In this section and sections 254.1 to 258.1,
...
"approved container" means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and

(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (contenant approuvé)

...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

The Order Approving Blood Sample Containers, SOR/2005-37 was enacted under the definition of "approved containers" found in s. 254(1), states:

Approved Containers

1 The following containers, being containers of a kind that is designed to receive a sample of blood of a person for analysis, are hereby approved as suitable, in respect of blood samples, for the purposes of section 258 of the Criminal Code:

(a) Vacutainer® XF947;

(b) BD Vacutainer™ 367001;

(c) Vacutainer® 367001;

(d) Tri-Tech Inc TUG10;

(e) BD Vacutainer® REF 367001; and

(f) TRITECHFORENSICS TUG10.

SOR/2010-64, s. 1; SOR/2012-60, s. 1.

– OABSC

Presumption of Accuracy

The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25(1) of the Interpretation Act to s. 258(1)(g). Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate. The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."

Admission of a certificate under s. 258(1)(g) "is evidence of [the technician's] status as a qualified technician".

"Approved Instrument"

The term "approved instrument" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

"Qualified Technician"

The term "qualified technician" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
"qualified technician" means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Rebuttal of Presumption

To rebut the presumption of accuracy the defence must raise a reasonable doubt that:

1. the approved instrument was functioning properly and operated properly;
2. the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and
3. the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".

Oral Evidence of the Breath Technician

The officer cannot simply give evidence stating that the readings were in "milligrams percent" without specifying what substances are being measured.

Certificate of Analysis

The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:

1. the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)
2. notice of intention to produce the Certificate of Analysis

In determining the admissibility of the certificate, the court may consider the contents of the certificate.

In agreeing to admit the toxicologist report does not amount to a concession of the essential elements or facts against them.

"analyst"
Section 254 defines "analyst", used in s. 258(d), (e), (f), and (i), as:

Definitions

254 (1) In this section and sections 254.1 to 258.1,
analyst means a person designated by the Attorney General as an analyst for the purposes of section 258; (analyste)
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Notice

Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.

The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.

s. 258
[omitted (1), (2), (3), (4), (5) and (6)]

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

– CCC (CanLII), (DOJ)

---

It is mostly accepted that the certificate must be proven on a balance of probabilities.

The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."

The term "copy" must mean "true copy" as an untrue copy would not even be a copy.

The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible. Merely glancing at the documents is not enough to ensure it was an exact reproduction. However, word for word comparison is not necessary either. There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review. Photocopies are generally sufficient. However, they must be legible to be valid.

When serving notice is it necessary that the officer is satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.

Receipt of Notice

Service of a notice under s. 258(7) does not require the accused to have continued control in possession of the certificate after receiving notice. However, a separate line of cases suggests that the accused must have personal possession for a sufficient period of time.

Valid Certificate

A valid certificate should state the following on its face:

• the time each sample was taken
• the place each sample was taken
• the results of the analysis of each sample
• that each sample was taken from the accused
• that each sample directly into the instrument
• that each sample was taken by an approved instrument
• the instrument was operated by a qualified technician
• the instrument was calibrated using a suitable alcohol standard
• the type of alcohol standard used

Errors in Certificate

Errors in the certificate are not necessarily fatal.

It is understood that the code provision are to be interpreted strictly, The absence of prejudice may not warrant invalidating the certificate.

Typographical errors in the certificate can be corrected in certain cases. Where the certificate otherwise complies with s. 258(1)(g), then it is admissible and can be corrected by viva voce evidence.

They can be corrected by presenting extrinsic credible evidence which provides a basis to establish that there was an error and what the correction would be. This will normally be through viva voce evidence. It should not be done merely by inference. The evidence can come from someone other than the technician.

The scratching out of a number and insertion of a number is an error that needs to be clarified by viva voce evidence.

An error in citing the Criminal Code provision regarding the designation of the certificate does not invalidate the certificate.

An error in checking off the right box identifying the qualification of the technician can be fatal without some additional evidence on their qualification somewhere on the certificate.

A failure to sign the certificate may render it inadmissible. There suggestion that a printed name will suffice but a typed name will not.

"Evidence to the Contrary" (Pre-2008 Amendments to s. 258)

Evidence to the contrary is evidence that "tends to show" that the accused's blood alcohol level at the time of driving was below the legal limit of 80 milligrams percent.

This type of evidence traditionally came in the following forms:

• evidence relating to the manner in which the machine was operated;
• evidence the accused consumed alcohol after the offence and before the readings were obtained;
• evidence of the time the last drink was consumed coupled with expert evidence that the last drink would not have been in the blood at the time of the driving (the "last drink defence");
• evidence of the amount consumed, when it was consumed and a toxicologist who can determine the blood-alcohol level while driving;
• use the same evidence regarding consumption to establish the machine as inaccurate.

Evidence of the accused's build and physical characteristics along with expert evidence of that person's rate of elimination on a date other than the offence date which shows a BAC level below 80 may be ETTC.

It is improper to reject ETTC simply by comparing it to the certificate readings. There must be a consideration of the credibility of the ETTC to reject it.

The defence does not have to lead evidence to establish ETTC. It can be inferred from all the evidence.

Carter Evidence

"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.

The presumption can be rebutted by proof that the approved instrument analyzing the driver’s breath was malfunctioning or was operated improperly.

It is not necessary for the accused to prove:

1. that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood; or
2. that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.

Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level. Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.

Instead, the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.

Bolus Drinking

Bolus drinking is the consumption of a significant amount of alcohol just prior driving. It is considered a relatively rare occurrence. The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences. Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle.

This in effect places a "practical evidentiary burden" on the accused, but does not place an onus or persuasive burden on the accused to prove that there was bolus drinking.

See R v Calabretta, 2008 ONCJ 27 (CanLII), 65 MVR (5th) 128, per Wake J for a detailed consideration on Bolus drinking

"Evidence Tending to Show" Malfunction or Improper Use of Instrument

The "evidence tending to show" the malfunctioning or improper use of the device does not need to come from an expert.

It is only necessary that the defence "adduce evidence to raise a reasonable doubt as to the proper operation of the instrument". This does not require that the defence "show the improper operation 'resulted in'... the reported concentration" of blood alcohol.

Acid Reflux

Evidence of Gastroesophogal reflux disease (GERD) can has been found to constitute evidence to the contrary or otherwise raising a doubt as to the breathalyzer readings. To be considered the accused must present evidence that there was alcohol in the accused stomach and that acid reflux resulted in some of the alcohol being brought into his mouth.

Blood / Urine tests

A blood sample can be obtained by a) a demand under s. 254(3)(a)(ii), b) by consent, or c) by a blood sample warrant under s. 256.

The blood sample test results can be proven by oral evidence through the normal rules of evidence or by documentary evidence of a certificate of a qualified medical practitioner or qualified technician. The certificate must comply with s. 258(1)(h).

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b) and (c)]

(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

(v) an analysis was made by an analyst of at least one of the samples,

evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

[omitted (d.1), (e), (f), (f.1), (g), (h) and (i)]

[omitted (2), (3), (4), (5), (6) and (7)]

– CCC (CanLII), (DOJ)

---

For more details, see Seizure of Bodily Samples and Consent Search.

Procedure

The defence must raise an issue with the admissibility of the analysis results during trial for it to be rendered inadmissible. The issue should be raised no later than the point in Crown's case where the certificate is introduced or the oral evidence of the results are presented. If the defence fails to challenge the admissibility of the analysis results, the Crown does not need to prove the officer's grounds to make the 254(3) demand.

A challenge to the analysis results by way of a Charter challenge under s. 8 places the burden on the Crown to prove the grounds to make the 254(3) demand on a balance of probabilities.

Admission of Certificates

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a), (b), (c), (d), (d.01) and (d.1)]

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

[omitted (g), (h) and (i)]

– CCC (CanLII), (DOJ)

---

See Also

• Breath Sample Demand

External Link

• BAC DataMaster Basic Operator Guide

Proof of Impairment by Drugs or Alcohol

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law/Sentencing
• < Offences
• < Conveyances

General Principles

Samples of breath or blood — alcohol

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

[omitted (2)]

Samples of breath — alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1) [samples of breath or blood – alcohol], by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) [types of drugs] — or that a combination of alcohol and one or more of those types of drugs — is impairing the person’s ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) [types of drugs]; or

(b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) [types of drugs] or to determine the person’s blood drug concentration for one or more of those types of drugs.

Types of drugs

(5) For the purpose of subsection (4) [samples of bodily substances], the types of drugs are the following:

(a) a depressant;

(b) an inhalant;

(c) a dissociative anaesthetic;

(d) cannabis;

(e) a stimulant;

(f) a hallucinogen; or

(g) a narcotic analgesic.

Condition

(6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person’s health.

Approved containers

(7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

Retained sample

(8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

Validity of analysis not affected

(9) A failure to comply with subsection (7) [approved containers] or (8) [retained sample] does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

Release of retained sample

(10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

History

The initial version of the offence of impaired driving required proof of "intoxication", which meant the "condition of being so stupefied or made drunk".

Authorization for a Blood Drug Sample Demand

320.28 [omitted (1)]

Evaluation and samples of blood — drugs

(2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4) [operation with low blood drug concentration], the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

(a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration, or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

A blood sample that is taken under s. 320.28 can be analyzed pursuant to s. 320.28(4)(b).

See Also

• History of Conveyance Offences
• "Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee" Can. Soc. Forens. Sci. J. Vol. 28. No 1 (1995) pp. 1-25

Proof of Impairment by Alcohol

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The Crown need only prove any degree of impairment of the person's ability to drive, not matter how great or minor.

Impairment refers to the physiological effect of alcohol upon the mind. This is separate from intoxication, which refers to the observable physical signs of impairment.

Note, however, impairment is relative to a particular task. It is not simply a degree of general impairment but rather the accused's ability to drive is impaired and that the impairment is caused by alcohol or a drug. The judge should not assume that mere impairment of any functional ability is equivalent to impairment by alcohol. here fatigue is combined with alcohol, the only issue is whether the alcohol was a contributing factor to the impairment.

Burden and Standard of Proof

Impairment must be proven beyond a reasonable doubt.

Evidence

To prove any degree of impairment of ability to drive, the crown should present evidence of aberrant driving and consumption of alcohol. If evidence of driving is not available there is greater responsibility of establishing impairment through signs of the accused.

Impairment cannot be inferred merely by the readings from the breath sample results. A judge cannot take judicial notice that a certain reading necessarily means that the person is impaired.

It is not necessary to prove that the driver intended to become impaired. Proof of the actus reus alone is sufficient to create a presumption that the accused intended to operate while impaired.

Where the evidence of impairment is equivocal on the totality of evidence, it would be dangerous to conclude beyond a reasonable doubt that there was impairment. This would include circumstantial evidence alone or equivocal evidence of impairment that shows only a “slight deviation from normal conduct”.

Odour of Alcohol Alone

The odour of alcohol alone is not sufficient evidence to support a finding of impairment. It is not criminal simply to consume alcohol and driving. The judge instead must consider the "totality of the evidence" to determine impairment.

Circumstances and Timing of Observations

Observations of an accused made during their compelled participation in an investigation, such as during pullover investigative detention, cannot be admissible for the purpose of proving impairment as it in only admissible for proving the officer's grounds.

Observations While Performing Sobriety Test

Any observations made while an accused is performing a mandatory sobriety test cannot be used to prove impairment because it is a compelled and violates the rule against self-criminating evidence.

Physical Signs of Impairment

Factors to consider include:

1. erratic or abnormal driving
2. blood-shot or watery eyes
3. flushed face
4. odour of alcoholic beverage
5. slurred speech
6. a deterioration of the accused’s judgement, attention, or comprehension
7. a loss of motor co-ordination or control,
8. increased reaction times,
9. diminished sensory perceptions, or
10. inappropriate or abusive behaviour

Observations of impairment:

Odour of alcohol	Faint moderate strong beer spirits wine	Attitude	excited combative polite talkative indifferent profane carefree insulting sleepy cooperative	Eyes	normal bloodshot glossy lacking focus	Speech	normal stuttering slurred rambling thick-tongued
Walk	normal swaying staggering falling	Balance	normal swaying sagging	Unusual symptoms	none crying belching vomiting hiccuping	Clothes	orderly disorderly soiled

Field Sobriety Tests

254
[omitted (1)]

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[omitted (c)]

[omitted (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Section 254(2.1) permits the police to make a video recording of the test:

254
[omitted (1) and (2)]

Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
[omitted (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Evaluation for drugs has similar requirements as 254(2) and (2.1) found in (3.1) and (3.2).

See Also

• Proof of Impairment by Drugs

Proof of Impairment by Alcohol

This page was last substantively updated or reviewed January 2019. (Rev. # 79421)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The Crown need only prove any degree of impairment of the person's ability to drive, not matter how great or minor.

Impairment refers to the physiological effect of alcohol upon the mind. This is separate from intoxication, which refers to the observable physical signs of impairment.

Note, however, impairment is relative to a particular task. It is not simply a degree of general impairment but rather the accused's ability to drive is impaired and that the impairment is caused by alcohol or a drug. The judge should not assume that mere impairment of any functional ability is equivalent to impairment by alcohol. here fatigue is combined with alcohol, the only issue is whether the alcohol was a contributing factor to the impairment.

Burden and Standard of Proof

Impairment must be proven beyond a reasonable doubt.

Evidence

To prove any degree of impairment of ability to drive, the crown should present evidence of aberrant driving and consumption of alcohol. If evidence of driving is not available there is greater responsibility of establishing impairment through signs of the accused.

Impairment cannot be inferred merely by the readings from the breath sample results. A judge cannot take judicial notice that a certain reading necessarily means that the person is impaired.

It is not necessary to prove that the driver intended to become impaired. Proof of the actus reus alone is sufficient to create a presumption that the accused intended to operate while impaired.

Where the evidence of impairment is equivocal on the totality of evidence, it would be dangerous to conclude beyond a reasonable doubt that there was impairment. This would include circumstantial evidence alone or equivocal evidence of impairment that shows only a “slight deviation from normal conduct”.

Odour of Alcohol Alone

The odour of alcohol alone is not sufficient evidence to support a finding of impairment. It is not criminal simply to consume alcohol and driving. The judge instead must consider the "totality of the evidence" to determine impairment.

Circumstances and Timing of Observations

Observations of an accused made during their compelled participation in an investigation, such as during pullover investigative detention, cannot be admissible for the purpose of proving impairment as it in only admissible for proving the officer's grounds.

Observations While Performing Sobriety Test

Any observations made while an accused is performing a mandatory sobriety test cannot be used to prove impairment because it is a compelled and violates the rule against self-criminating evidence.

Physical Signs of Impairment

Factors to consider include:

1. erratic or abnormal driving
2. blood-shot or watery eyes
3. flushed face
4. odour of alcoholic beverage
5. slurred speech
6. a deterioration of the accused’s judgement, attention, or comprehension
7. a loss of motor co-ordination or control,
8. increased reaction times,
9. diminished sensory perceptions, or
10. inappropriate or abusive behaviour

Observations of impairment:

Odour of alcohol	Faint moderate strong beer spirits wine	Attitude	excited combative polite talkative indifferent profane carefree insulting sleepy cooperative	Eyes	normal bloodshot glossy lacking focus	Speech	normal stuttering slurred rambling thick-tongued
Walk	normal swaying staggering falling	Balance	normal swaying sagging	Unusual symptoms	none crying belching vomiting hiccuping	Clothes	orderly disorderly soiled

Field Sobriety Tests

254
[omitted (1)]

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[omitted (c)]

[omitted (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Section 254(2.1) permits the police to make a video recording of the test:

254
[omitted (1) and (2)]

Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
[omitted (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Evaluation for drugs has similar requirements as 254(2) and (2.1) found in (3.1) and (3.2).

See Also

• Proof of Impairment by Drugs

Admission of Breath or Blood Sample

This page was last substantively updated or reviewed June 2021. (Rev. # 79421)

• < Criminal Law/Sentencing
• < Offences
• < Conveyances

General Principles

Evidentiary Matters

Breath samples

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[omitted (2), (3), (4), (5), (6), (7), (9) and (10)]
2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The requirements of s. 320.31(1)(a) must be proven through tendering the Certificate of Analysis or through viva voce testimony of the analyst.

320.31
[omitted (1)]

Blood samples — concentration when sample taken

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

Evidence not included

(3) Evidence of the following does not constitute evidence tending to show that an analysis of a sample of a person’s blood was performed improperly:

(a) the amount of alcohol or a drug that they consumed;

(b) the rate at which the alcohol or the drug would have been absorbed or eliminated by their body; or

(c) a calculation based on the evidence referred to in paragraphs (a) [proof by inference from breath or blood samples – evidence not included – consumption] and (b) [proof by inference from breath or blood samples – evidence not included – absorption rate] of what their blood alcohol concentration or blood drug concentration would have been at the time the sample was taken.

Presumption — blood alcohol concentration

(4) For the purpose of paragraphs 320.14(1)(b) [impaired operation – within 2 hrs BAC exceeding 80] and (d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations], if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken], as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

Admissibility of evaluating officer’s opinion

(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

Presumption — drug

(6) If the analysis of a sample provided under subsection 320.28(4) [samples of bodily substances] demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

Admissibility of result of analysis

(7) The result of an analysis of a sample of a person’s breath, blood, urine, sweat or other bodily substance that they were not required to provide under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)] may be admitted in evidence even if the person was not warned before they provided the sample that they were not required to do so or that the result of the analysis of the sample might be used in evidence.

Evidence of failure to provide sample

(8) Unless a person is required to provide a sample of a bodily substance under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)], evidence that they failed or refused to provide a sample for analysis or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in any proceedings under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)].

Admissibility of statement

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood].

Evidence of failure to comply with demand

(10) In any proceedings in respect of an offence under section 320.14 [impaired operation, including causing bodily harm or death], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.27 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood] is admissible and the court may draw an inference adverse to the accused from that evidence.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

{{{4}}}

Certificate of Analysis

Certificates

320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)] is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

Notice of intention to produce certificate

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

Attendance and cross-examination

(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

Form and content of application

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Time of hearing

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

Certificate admissible in evidence

(6) In proceedings in respect of an offence under subsection 320.18(1) [operation while prohibited], the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

(a) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a motor vehicle in the province specified in the certificate, signed by the person who is responsible for the registration of motor vehicles in that province or any person authorized by the responsible person to sign it; and

(b) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a conveyance other than a motor vehicle, signed by the Minister of Transport or any person authorized by him or her to sign it.

Onus

(7) If it is proved that a prohibition under paragraph 320.18(1)(b) [operation while prohibited – under non-CC prohibition] has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Omissions and Typos in Certificate

Courts should take a "pragmatic" approach to certificates with omissions and typos as long as the accused is not prejudiced. Where oral evidence identifies the typographical error, the court can accept it and correct it.

"copy of the certificate"

It is not necessary that the officer serving the copy on the accused has made a side-by-side comparison of the copy and original. A mechanically made copy, such as through carbon paper, is a prima facie proof that the copy was a true copy and no comparison is necessary.

Printouts

Printout from approved instrument

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

---

Sample Test Disclosure

Disclosure of information

320.34 (1) In proceedings in respect of an offence under section 320.14 [impaired operation], the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28 [sample and evalution of breath and/or blood], information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) [proof by inference from breath or blood samples – prerequisites] have been met, namely:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

Application for further disclosure

(2) The accused may apply to the court for a hearing to determine whether further information should be disclosed.

Form and content of application

(3) The application shall be in writing and set out detailed particulars of the information that the accused seeks to have disclosed and the likely relevance of that information to determining whether the approved instrument was in proper working order. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Time of hearing

(4) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

For greater certainty

(5) For greater certainty, nothing in this section limits the disclosure to which the accused may otherwise be entitled.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Presumption of Operation

Presumption of operation

320.35 In proceedings in respect of an offence under section 320.14 [impaired operation, including causing bodily harm or death] or 320.15 [refusal to provide a sample], if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Proof of Impairment by Drugs

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The standard to proving impairment by drugs is the same as impairment by alcohol. The main difference involves the manner of detecting the presence of drugs and presenting evidence that there is impairment.

The investigation of an impaired by drugs case commences with the initial investigation wherein an officer forms a reasonable suspicion of impairment by drugs.

Authority to Make Demand for Test

Under s. 254(3.1), the officer may demand that the driver submit to screening test to determine if there is reasonable grounds to believe that the driver is committing an offence under s. 253 regarding drugs:

254
[omitted (1), (2), (2.1) and (3)]

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) [impaired operation] as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1) .
[omitted (3.3), (3.4), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

The investigating officer will generally have a Drug Recognition Expert (or Drug Recognition Evaluator) attend the scene of the investigation to perform a Standardized Field Sobriety Test (SFST) to determine if the driver may be impaired by drugs.

If the driver presents sufficient indicia of impairment then they will be given a demand to attend the police station to undergo the full 12 step assessment as set out in the Regulations.

"evaluating officer"

The term evaluating officer is found in s. 254(3.1), (3.3), and (3.4). It is defined in s. 254(1):

Definitions

254 (1) In this section and sections 254.1 to 258.1 [select provisions re impaired driving, over 80, and refusal],
...
"evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1) [motor vehicle offences – definitions – evaluation]; (agent évaluateur)
...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Form of Demand

The officer must issue a demand such as the following:

I demand that you submit to an evaluation, conducted by an evaluating officer, to determine whether your ability to operate a motor vehicle is impaired by a drug or a combination of a drug and alcohol, and that you accompany me for this purpose. Do you understand?

– N/A

Standardized Field Sobriety Test

The Standardized Field Sobriety Test will frequently take place at the roadside, when it is safe to do so and where the officer has not already formed the requisite grounds to believe that an offence under s. 253 has been committed.

The SFST will involve the examination of the driver's eyes for signs of Horizontal Gaze Nystagmus, a heel-to-toe walk, and a one-legged standing test.

Drug Assessment

The Drug Recognition Expert follows a 12 step assessment process that is generally uniform across all of North America.

1. Breath Alcohol Test
2. Interview of the Arresting Officer
3. Preliminary Examination and First Pulse
4. Eye Examination
5. Divided Attention Psychophysical Tests
6. Vital Signs and Second Pulse
7. Dark Room Examinations
8. Examination for Muscle Tone
9. Check for Injection Sites and Third Pulse
10. Subject’s Statements and Other Observations
11. Analysis and Opinions of the Evaluator
12. Toxicological Examination

	CNS Dep.	Inhalants	PCP	Cannabis	CNS Stim.	Halluc.	Narc./Analg.
HGN	Y	Y	Y	N	N	N	N
VGN	Y	Y	Y	N	N	N	N
LOC	Y	Y	Y	Y	N	N	N
Pulse	Lower	Raised	Raised	Raised	Raised	Raised	Lower
Blood Pressure	Lower	Raised	Raised	Raised	Raised	Raised	Lower
Body Temp.	N	N	N	Y	Y	Y	Down
Muscle Tone	Flaccid	Flac./Norm.	Rigid	Normal	Rigid/Tremors	Rigid	Flaccid

Key

Duration

HGN = horizontal gaze nystagmus VGN = vertical gaze nystagmus LOC = lack of ocular convergence CNS Depressants: Anti-anxiety / traquilizers Xanax/Alprazolam Valium most drugs ending in -pam Anti-Depressants Wellbutrin Lexapro Paxil Zolof GHB Barbiturates CNS Stimulants: Cocaine Analgesics: Heroin Oxycontin Demerol Codeine

Cocaine (CNSS): Effect: 30-40 minutes (smoking) 60-90 minutes (nasal) Detection Urine: 12 hours post dose. Benzoylecgonine metabolite present for 3 days Blood: 5-6 hours after dose Methamphetamine: Effect:2-8 hours Detection Blood: 1-3 days Urine: 1-5+ days THC (Cannabis): Effect:2-5 hours Detection Blood:3-4 hours post dose Urine: several days or weeks PCP: Effect: 4-6+ hours Detection Blood: 1-3 days Urine:3-7+ days

• http://www.childrenscolorado.org/pdf/Drug%20Awareness.pdf

See: [1]

Opinion of Impairment by Drug

There is no need for a "Mohan" qualification, including notice under s. 657.3 of the Code, before a certified drug expert can give opinion evidence.

254
[omitted (1), (2), (2.1) and (3)]

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.
[omitted (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]

– CCC (CanLII), (DOJ)

---

Blood or Urine Sample

Either a blood or urine sample will be taken after the Drug Assessment. The purpose of the sample is largely confirmatory of the independent conclusion of the DRE on whether there is impairment.

Section 254(3.4) of the Code authorizes the taking of a blood sample:

254
[omitted (1), (2), (2.1), (3), (3.1), (3.2) and (3.3)]

Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Condition

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.
[omitted (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Procedure

The common law rules for qualification of an expert apply to anyone seeking to qualify a DRE expert.

There previously was a division of opinion of whether an evaluating officer (DRE) requires that the officer be qualified as an expert entitled to give opinion evidence.

Case Digests

• R v Conron, 2012 ONCJ 171 (CanLII), per Radley-Walters J -- DRE impaired acquittal

Proof of Impairment by Drugs

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

The standard to proving impairment by drugs is the same as impairment by alcohol. The main difference involves the manner of detecting the presence of drugs and presenting evidence that there is impairment.

The investigation of an impaired by drugs case commences with the initial investigation wherein an officer forms a reasonable suspicion of impairment by drugs.

Authority to Make Demand for Test

Under s. 254(3.1), the officer may demand that the driver submit to screening test to determine if there is reasonable grounds to believe that the driver is committing an offence under s. 253 regarding drugs:

254
[omitted (1), (2), (2.1) and (3)]

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) [impaired operation] as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1) .
[omitted (3.3), (3.4), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

The investigating officer will generally have a Drug Recognition Expert (or Drug Recognition Evaluator) attend the scene of the investigation to perform a Standardized Field Sobriety Test (SFST) to determine if the driver may be impaired by drugs.

If the driver presents sufficient indicia of impairment then they will be given a demand to attend the police station to undergo the full 12 step assessment as set out in the Regulations.

"evaluating officer"

The term evaluating officer is found in s. 254(3.1), (3.3), and (3.4). It is defined in s. 254(1):

Definitions

254 (1) In this section and sections 254.1 to 258.1 [select provisions re impaired driving, over 80, and refusal],
...
"evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1) [motor vehicle offences – definitions – evaluation]; (agent évaluateur)
...
[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Form of Demand

The officer must issue a demand such as the following:

I demand that you submit to an evaluation, conducted by an evaluating officer, to determine whether your ability to operate a motor vehicle is impaired by a drug or a combination of a drug and alcohol, and that you accompany me for this purpose. Do you understand?

– N/A

Standardized Field Sobriety Test

The Standardized Field Sobriety Test will frequently take place at the roadside, when it is safe to do so and where the officer has not already formed the requisite grounds to believe that an offence under s. 253 has been committed.

The SFST will involve the examination of the driver's eyes for signs of Horizontal Gaze Nystagmus, a heel-to-toe walk, and a one-legged standing test.

Drug Assessment

The Drug Recognition Expert follows a 12 step assessment process that is generally uniform across all of North America.

1. Breath Alcohol Test
2. Interview of the Arresting Officer
3. Preliminary Examination and First Pulse
4. Eye Examination
5. Divided Attention Psychophysical Tests
6. Vital Signs and Second Pulse
7. Dark Room Examinations
8. Examination for Muscle Tone
9. Check for Injection Sites and Third Pulse
10. Subject’s Statements and Other Observations
11. Analysis and Opinions of the Evaluator
12. Toxicological Examination

	CNS Dep.	Inhalants	PCP	Cannabis	CNS Stim.	Halluc.	Narc./Analg.
HGN	Y	Y	Y	N	N	N	N
VGN	Y	Y	Y	N	N	N	N
LOC	Y	Y	Y	Y	N	N	N
Pulse	Lower	Raised	Raised	Raised	Raised	Raised	Lower
Blood Pressure	Lower	Raised	Raised	Raised	Raised	Raised	Lower
Body Temp.	N	N	N	Y	Y	Y	Down
Muscle Tone	Flaccid	Flac./Norm.	Rigid	Normal	Rigid/Tremors	Rigid	Flaccid

Key

Duration

HGN = horizontal gaze nystagmus VGN = vertical gaze nystagmus LOC = lack of ocular convergence CNS Depressants: Anti-anxiety / traquilizers Xanax/Alprazolam Valium most drugs ending in -pam Anti-Depressants Wellbutrin Lexapro Paxil Zolof GHB Barbiturates CNS Stimulants: Cocaine Analgesics: Heroin Oxycontin Demerol Codeine

Cocaine (CNSS): Effect: 30-40 minutes (smoking) 60-90 minutes (nasal) Detection Urine: 12 hours post dose. Benzoylecgonine metabolite present for 3 days Blood: 5-6 hours after dose Methamphetamine: Effect:2-8 hours Detection Blood: 1-3 days Urine: 1-5+ days THC (Cannabis): Effect:2-5 hours Detection Blood:3-4 hours post dose Urine: several days or weeks PCP: Effect: 4-6+ hours Detection Blood: 1-3 days Urine:3-7+ days

• http://www.childrenscolorado.org/pdf/Drug%20Awareness.pdf

See: [2]

Opinion of Impairment by Drug

There is no need for a "Mohan" qualification, including notice under s. 657.3 of the Code, before a certified drug expert can give opinion evidence.

254
[omitted (1), (2), (2.1) and (3)]

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.
[omitted (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]

– CCC (CanLII), (DOJ)

---

Blood or Urine Sample

Either a blood or urine sample will be taken after the Drug Assessment. The purpose of the sample is largely confirmatory of the independent conclusion of the DRE on whether there is impairment.

Section 254(3.4) of the Code authorizes the taking of a blood sample:

254
[omitted (1), (2), (2.1), (3), (3.1), (3.2) and (3.3)]

Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Condition

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.
[omitted (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

---

Procedure

The common law rules for qualification of an expert apply to anyone seeking to qualify a DRE expert.

There previously was a division of opinion of whether an evaluating officer (DRE) requires that the officer be qualified as an expert entitled to give opinion evidence.

Case Digests

• R v Conron, 2012 ONCJ 171 (CanLII), per Radley-Walters J -- DRE impaired acquittal